These Terms and Conditions shall serve to establish the terms and conditions under which The Student Room Group Limited (The Student Room, Marked by Teachers and Get Revising are trading names of The Student Room Group Limited), and the advertiser and its agencies (collectively, “Advertiser”) identified in an insertion order shall conduct business. These Terms and Conditions accompany insertion orders and represent a common understanding for doing business. These Terms and Conditions may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production, but will be used as the basis for the media components of such contracts.
I. INSERTION ORDERS (covering Confirmation of Advertising Order) AND INVENTORY
a. From time to time, the parties may negotiate insertion orders (“IOs”) under which The Student Room Group Limited will deliver advertisements provided by Advertiser (“Ad(s)”) to sites managed by The Student Room Group Limited (the “Sites”) for the benefit of Advertiser. At Advertiser’s discretion, an IO may either be submitted by Advertiser to The Student Room Group Limited or be submitted by The Student Room Group Limited, signed by Advertiser and returned to The Student Room Group Limited. In either case, an IO will be binding only if accepted as provided in Section I(b) below. Each IO shall specify: (a) the type(s) and amount(s) of inventory to be delivered (e.g., impressions) (the “Deliverables”); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO (if applicable), (d) the start and end dates of the campaign, (e) the identity of and contact information for the Advertiser (this should include invoicing contact if different), (f) the order number (or Purchase Order number if applicable), and (g) whether VAT is applied or zero rated (if VAT is zero rated a VAT zero rated exemption form must be provided to avoid being invoiced including VAT) . Other items that may be included are, but are not limited to: any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.
b. The Student Room Group Limited will make commercially reasonable efforts to notify Advertiser within two business days of receipt of an IO signed by Advertiser if the specified inventory is not available. Acceptance of the IO submitted by Advertiser and these Terms and Conditions will be made upon the earlier of (a) written (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) approval of the IO by The Student Room Group Limited and Advertiser; or (b) the display of the first Ad impression by The Student Room Group Limited, unless otherwise agreed upon in the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless agreed to in writing by both parties.
c. Revisions to accepted IOs must be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. The Student Room Group Limited must comply with the IO, including all Ad placement restrictions and requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO an Ad in the manner specified on the IO when Sites are called up by Internet users. Any exceptions must be approved by Advertiser in writing.
b. The Student Room Group Limited will use commercially reasonable efforts to provide Advertiser at least ten (10) business days prior notification of any material changes to the Sites that would change the relevant target audience or significantly affect the size or placement of the Ad specified in the affected IO. Should such a modification occur with or without notice, as Advertiser’s sole remedy for such change, Advertiser may immediately cancel the remainder of the IO without penalty within the 10-day notice period. If The Student Room Group Limited has failed to provide such notification, Advertiser may cancel the remainder of the IO within thirty (30) days of such modification, and in such case shall not be charged for any affected Ads delivered after such modification.
c. The Student Room Group Limited will submit or otherwise make electronically accessible to Advertiser within two (2) business days of acceptance of an IO final technical specifications, as agreed upon by the parties. Changes to the specifications of the already purchased Ads by The Student Room Group Limited after that two (2) business day period will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (Advertising Materials); (ii) accept a comparable replacement; or (iii) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the IO for the affected Ad without penalty.
III. PAYMENT AND PAYMENT LIABILITY
a. Invoices. The Student Room Group Limited will invoice the campaign in full on the start date (go live) of the campaign unless otherwise specified on the IO. Invoices are to be sent to: Advertiser’s email (or postal address if no email address is available) billing address as set forth in the IO and must include information reasonably specified by Advertiser such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.
b. Payment Date. Advertiser will make payment within thirty (30) days from receipt of invoice unless otherwise specified on the IO. The Student Room Group Limited may notify Advertiser that it has not received payment in such thirty-day period and whether it intends to charge the overdue account at the rate of 3% per month. The Student Room Group Limited reserves the right to charge overdue accounts at the rate of 3% per month. The Student Room Group Limited reserves the right not to set further campaigns live for any Advertiser who has outstanding overdue payments.
IV. CANCELLATION AND TERMINATION
a. Once an IO has been returned to The Student Room Group Limited by the Advertiser, the campaign cannot be cancelled.
a. The Student Room Group Limited shall monitor delivery of the Ads, and shall notify Advertiser either electronically or in writing as soon as possible (and no later than two (2) weeks before IO end date unless the length of the campaign is less than two (2) weeks) if The Student Room Group Limited believes that an under-delivery, if applicable, is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions.
b. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and The Student Room Group Limited will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the underdelivered portion of the contract IO for which it was charged. In the event that Advertiser has made a cash pre-payment to The Student Room Group Limited, specifically for the campaign IO for which under-delivery applies, then if Advertiser is reasonably current on all amounts owed to The Student Room Group Limited under any other agreement for such Advertiser, Advertiser may elect to receive a refund for the under- delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign.
VI. BONUS IMPRESSIONS
a. The Student Room Group Limited may bonus as many ad units as The Student Room Group Limited chooses unless otherwise indicated on the IO. Advertiser will not be charged by The Student Room Group Limited for any additional advertising units above any level guaranteed in the IO.
VII. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, Internet outages, acts of God, or labour disputes. In the event that
The Student Room Group Limited suffers such a delay or default, The Student Room Group Limited shall make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or make good is reasonably acceptable to Advertiser, The Student Room Group Limited shall allow Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase. In addition, Advertiser shall have the benefit of the same discounts that would have been earned had there been no default or delay.
b. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser shall make every reasonable effort to make payments on a timely basis to The Student Room Group Limited, but any delays caused by such condition shall be excused for the duration of
such condition. Subject to the foregoing, such excuse for delay shall not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. To the extent that a force majeure has continued for five (5) business days, The Student Room Group Limited or Advertiser has the right to cancel the remainder of the IO without penalty.
VIII. AD MATERIALS
a. It is Advertiser’s obligation to submit Advertising Materials in accordance with The Student Room Group Limited’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with The Student Room Group Limited’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”) in accordance with Section II(c). The Student Room Group Limited’s sole remedy for a breach of this provision is set forth in paragraphs (b, c and d) below. If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO.
b. The Student Room Group Limited reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in The Student Room Group Limited’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, The Student Room Group Limited reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon The Student Room Group Limited or any of its Affiliates (as defined below), provided that if The Student Room Group Limited has reviewed and approved such Ads prior to their use on the Site, The Student Room Group Limited will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser.
c. If Advertising Materials provided by Advertiser are damaged, not to The Student Room Group Limited’s specifications, or otherwise unacceptable, The Student Room Group Limited will use commercially reasonable efforts to notify Advertiser within two (2) business days of its receipt of such Advertising Materials.
d. If copy is not provided prior to the campaign start date specified on the IO The Student Room Group Limited will set up an Advertorial Announcement and the order will commence on the IO campaign start date and the Advertiser will incur a £75 setup fee beyond the value of the IO.
e. The Student Room Group Limited will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Advertiser approval. The Student Room Group Limited shall use all such Ads in strict compliance with these Terms and Conditions and any written instructions provided by Advertiser.
a. The maximum value of any indemnity payment by either the Advertiser or The Student Room Group Limited will be the full value of the Insertion Order under which an indemnity payment becomes due.
b. Subject to the maximum value of an indemnity payment set out in IXa, The Student Room Group Limited agrees to defend, indemnify and hold harmless Advertiser, its Affiliates (as defined below) and respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys fees) (collectively Losses ) incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of The Student Room Group Limited’s breach of Section XII, The Student Room Group Limited’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an IO, or that materials provided by The Student Room Group Limited (and not by Advertiser) for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Advertiser’s unique specifications provided that The Student Room Group Limited did not know or should not have reasonably known that such specifications would give rise to the Loss or (2) that such materials are provided to Advertiser for review and Advertiser knew or should have reasonably known from the visual or sonic expression of the Advertisement, while The Student Room Group Limited did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A “Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
c. Subject to the maximum value of an indemnity payment set out in IXa, Advertiser agrees to defend, indemnify and hold harmless The Student Room Group Limited, its Affiliates and respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section XI, violation of Policies (to the extent the applicable terms of such Policies have been provided to Advertiser at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials to the extent used by The Student Room Group Limited in accordance with these Terms and Conditions or an IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.
d. Agency represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and Conditions and each IO. Agency agrees to defend, indemnify and hold harmless The Student Room Group Limited its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence.
e. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (the “Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
f. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section IX, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A “Related Party” is
a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
X. LIMITATION OF LIABILITY
Excluding the parties obligations under Section IX or damages that result from a breach of Section XI or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages..
XI. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed Confidential Information of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by reasonable confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. For purposes of this Section, Agency and Advertiser shall be considered one party. Notwithstanding anything contained herein to the contrary, the term Confidential Information shall not include information which: (i) was previously known to a party without restriction; (ii) was or becomes generally available to the public through no fault of the receiving party (Recipient); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (Discloser); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
e. Agency, Advertiser and The Student Room Group Limited will comply with at all times, all applicable UK law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.